Explaining the concept of judicial activism, discuss why it is important for courts not to take over the
functions of the legislature or the executive.
Approach:
- Briefly explain the concept of judicial activism and reasons for its advent.
- Discuss why it is important for the judiciary to practice constitutional restraint while dealing with
functions of the legislature or the executive.
Answer:
Judicial activism refers to the proactive role played by the judiciary in the protection of the rights of
citizens and in the promotion of justice in the society. It asserts judiciary’s role in forcing the other two
organs of the government (legislature and executive) to discharge their constitutional duties.
The advent of judicial activism has been due to many reasons like legislative vacuum, executive failure to
discharge their duties, constitutional articles such as Art. 142, growth of concepts of human rights and
social welfare and judicial enthusiasm towards them. But sometimes this enthusiasm turns into
adventurism or even overreach, which goes against the Constitutional mandate. So, it is asked of the
courts, by the Supreme Court itself, to practice judicial restraint.
Arguments for courts to not take over the functions of the legislature or the executive: - It violates the delicate balance of power enshrined in the Constitution i.e. principle of separation of
powers where each organ of the state must have respect for others and should not encroach on
others’ domain. - The justification often given for judicial encroachment on the domain of the executive or the
legislature is that the other two organs are not doing their jobs properly. Even assuming this is so,
the same allegations can be made against the judiciary too because there are cases pending in
courts for half-a-century. - Entertaining more litigations only further delays the justice delivery in the country.
- The regular intervention by judiciary undermines democratic character of Indian polity. This is
because judiciary is non-elective in nature and the judges’ appointment in itself is questioned
multiple times on grounds of nepotism and bias. - It is possible that judges may allow their personal political values and policy agendas to colour their
judicial opinions. - The judiciary must realise that administrative authorities have expertise in the field of
administration. - The judiciary lacks the resources required to perform the functions of executive or legislature.
Judicial activism has brought a revolution in terms of welfare of the people such as introduction of due
process of law (Maneka Gandhi case), Vishaka guidelines (1997), ban on registration of diesel vehicles in
Delhi etc., but there is a very fine line between judicial activism and judicial overreach. It is of utmost
importance that the judiciary respects the constitutional boundaries to avoid any adventurism on its
part, whilst moving forward with the activism for overall good of society in line with the vision of DPSPs
articulated in the Constitution.
2.
Compare the constitutional position of Rajya Sabha with the Lok Sabha in terms of legislative powers.
Also bring out special powers given to Rajya Sabha in this context.
Approach:
- Briefly introduce with the composition of Parliament.
- Then compare the constitutional position of Rajya Sabha with Lok Sabha in terms of legislative
powers i.e. where they are equal and where not equal. - Also, give an account of the special powers given to Rajya Sabha.
- Answer:
- The Parliament constitutes the President, the Lok Sabha and the Rajya Sabha and all these three pillars
- of Parliament have different roles with respect to the legislative process in different stages of law
- making. The Constitutional position of the Rajya Sabha in comparison to Lok Sabha with respect to
- legislative powers can be compared in the following ways:
- Equal status with Lok Sabha:
- Rajya Sabha has equal legislative power with Lok Sabha in:
- introduction and passage of ordinary bills.
- introduction and passage of Constitutional amendment bills.
- introduction and passage of financial bills involving expenditure from the Consolidated Fund of India.
- approval of ordinances issued by the President.
Unequal status with Lok Sabha: - A money bill can be introduced only in the Lok Sabha and not in Rajya Sabha.
- Rajya Sabha cannot amend or reject a Money Bill. It can return the bill to Lok Sabha within 14 days,
either with recommendations or without recommendations and Lok Sabha can either accept or
reject all or any of the recommendations of the Rajya Sabha. - A financial bill, not containing solely the matters of Article 110 can be introduced only in the Lok
Sabha. But with regards to its passage, both the houses have equal powers. - The final power to decide whether a particular bill is a money bill or not is vested in the Speaker of
the Lok Sabha and the Speaker presides over the joint sitting of both the houses. - Rajya Sabha can only discuss the budget but cannot vote on the demands for grants.
Special Powers of Rajya Sabha in this context:
Rajya Sabha has been given two exclusive or special powers that are not enjoyed by the Lok Sabha: - It can authorize Parliament to make a law on a subject enumerated in the State List under article
249. - It can authorize the Parliament to create new All- India Services common to both the Centre and
States under article 312.
So, overall the power and status of Rajya Sabha are broadly equal and coordinate with that of Lok Sabha,
except in financial matters and control over council of ministers.
